Miller v. Cox, 14880.

• Citation: 443 F.2d 1019
• Decision Date: 18 March 1971
• Docket Number: No. 14880.,14880.
• Parties: Douglas F. MILLER, Appellant, v. J. D. COX, Superintendent of the Virginia State Penitentiary, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

443 F.2d 1019 (1971)

Douglas F. MILLER, Appellant, v. J. D. COX, Superintendent of the Virginia State Penitentiary, Appellee.

No. 14880.

United States Court of Appeals, Fourth Circuit.

March 18, 1971.

Douglas F. Miller, pro se.

W. Luke Witt, Asst. Atty. Gen., for appellee.

Before HAYNSWORTH, Chief Judge, SOBELOFF, Senior Circuit Judge, and BUTZNER, Circuit Judge.

SOBELOFF, Senior Circuit Judge:

This habeas corpus proceeding, brought by a Virginia prisoner, presents the question whether and under what circumstances a prisoner who has served time under a conviction and sentence later held invalid is entitled to credit for that time against another sentence.

The question may arise in a variety of situations which need to be distinguished. Where a conviction is set aside and the prisoner is then retried and convicted of the same offense, the Supreme Court has held that the time served under the voided conviction must be credited toward the subsequently imposed sentence. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). This result was dictated by the constitutional prohibition against multiple punishment for the same offense, a concept embodied in the Double Jeopardy clause of the Fifth Amendment.

A second and distinct situation is presented where a prisoner serving consecutive sentences on several convictions succeeds in having one of the sentences invalidated after it has been fully or partially served. In this instance there is no question of multiple punishment for the same offense. Nevertheless, this court held in Tucker v. Peyton, 357 F.2d 115 (4th Cir. 1966), that the state must credit the sentences remaining to be served on the valid convictions with the time served under the voided conviction.¹ We emphasized that all that was involved was an adjustment of the administrative records of the prison authorities so that service on the remaining valid sentences would commence at an earlier date. 357 F.2d at 117. Common sense and fundamental fairness require that under such circumstances the state should not ignore the period of imprisonment under the invalid sentence when an appropriate remedy is so readily available.

There is still a third category which calls for an entirely different treatment of time served under a voided conviction. Here an individual, after his conviction has been invalidated and he has regained his freedom, commits a new crime and receives a new sentence. The issue is then posed whether credit should be allowed on that sentence for time served on the prior invalidated conviction. In Sills v. Peyton, Mem.Dec. 12,045 (4th Cir. 1968), this court faced a claim of credit asserted in such circumstances and squarely rejected it. Sills had served 21 years on convictions set aside because of the state's failure to provide him counsel as mandated by Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).² After Sills' release from prison, he perpetrated several new felonies for which prison sentences aggregating 11 years were imposed. Sills maintained in his federal habeas petition that time served under the void convictions entitled him to credit on his latest sentences, and thus to immediate freedom since the credit, if granted, would exceed the new sentences. His contention went even further. In his view the uncredited portion of the 21 years should also remain available to be applied to any valid sentence or sentences that might be imposed upon him for future criminal conduct. Under the facts of that case, this court declared it "unthinkable to lend support to any judicial decision which permits the establishment of a line of credit for future crimes." We today reaffirm our holding in Sills, supra. The underlying reasoning was that the availability of credits against sentences for future crimes would provide a sense of immunity and an incentive to engage in criminal conduct. The public policy consideration involved was deemed to outweigh the claim for requital by way of a time allowance for the illegal detention to which the prisoner had been subjected. In such situations perhaps a monetary compensation by the state would be more just and fitting, but this would require legislation by the state. It is not constitutionally required. It is hardly likely that a legislature would authorize compensation in every case where a conviction has been set aside for whatever reason after the service of a sentence or part of it. The legislative scheme would doubtless provide...